Communicated on 23 August 2016

FIFTH SECTION

Application no. 52410/09 Viktor Nikolayevich YEREMENKO against Ukraine and 3 other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the cases

The facts of the case, as submitted by the applicants, may be summarised as follows.

Application Yeremenko v. Ukraine (no. 52410/09)

On 25 January 2004 the applicant entered into a swap contract with Ms F. under which he acquired some agricultural land she owned in exchange for timber.

On 6 October 2004 the Ukrainian Parliament enacted amendments to the Land Code prohibiting swap transactions in respect of agricultural land.

On 9 June 2006 the Bakhchysaray District Court allowed a claim by the applicant against F., declaring the swap contract valid and confirming him as the owner of the land.

No appeal was lodged within the ten-day time-limit and the judgment became final.

On 27 September 2006 the Bakhchysaray District Land Resources Department (“the Land Department”) issued an ownership certificate to the applicant.

On 12 January 2009 the Bakhchysaray district prosecutor appealed against the judgment of 9 June 2006 on the Department ’ s behalf. The prosecutor asked that the time-limit for an appeal be extended on the grounds that the Land Department had only learned of the judgment after an audit conducted by the prosecutor ’ s office at the request of Judge L., a deputy president of the Crimea Court of Appeal (“the Court of Appeal”) .

On 16 February 2009 the Court of Appeal, accepting the reasons given by the prosecutor, extended the time-limit.

On 16 March 2009 the Court of Appeal quashed the judgment and rejected the applicant ’ s claim against F. on the grounds that a contract of the type in question could only be effective once it had been registered, it had not been so registered and therefore the contract was subject to the prohibition on the alienation of agricultural land. The first-instance court had therefore erred in declaring it valid.

The applicant lodged an appeal on points of law, arguing in particular that the extension of the time-limit had been contrary to the principle of legal certainty.

On 3 September 2009 the Supreme Court rejected the applicant ’ s request for leave to appeal on points of law.

Application Timchenko v. Ukraine (no. 61822/09)

On 9 June 2008 the applicant bought agricultural land from Mr T., a Russian national.

On 7 November 2008 the Bakhchysaray District Court allowed a claim by the applicant against T., declared the sale contract valid and confirmed the applicant as the new owner of the land.

The Bakhchysaray district prosecutor appealed on behalf of the Land Department arguing, in particular, that the sale had been contrary to the prohibition on transfers of agricultural land and that the Land Department had had no notice of the proceedings before the District Court.

On 27 May 2009 the Court of Appeal allowed the prosecutor ’ s appeal, quashed the District Court ’ s judgment and rejected the applicant ’ s claim.

On 15 September 2009 the Supreme Court rejected a request by the applicant for leave to appeal on points of law.

Application Yeremenko v. Ukraine (no. 3746/10)

On 24 October 2006 the Bakhchysaray District Court allowed a claim by the applicant against the Bakhchysaray District Administration and ordered the Administration to change the designated use of the applicant ’ s land in the district from “commercial agricultural production” to “personal farmstead”.

No appeal was lodged within the ten-day time-limit and the judgment became final.

On 19 December 2006 Parliament prohibited any change of the designated use of agricultural land, including land in the “commercial agricultural production” and the “personal farmstead” categories.

According to the applicant, in April 2008 he obtained consent from the Land Department for documentation which made formal the change of the designated use of the land under the court ’ s judgment.

On 23 March 2009 the Bakhchysaray district prosecutor appealed against the judgment of 24 October 2006 on the Land Department ’ s behalf. The prosecutor asked that the time-limit for an appeal be extended on the grounds that the Land Department had not been informed about the judgment in time.

On 24 June 2009 the Court of Appeal allowed the appeal, quashed the District Court ’ s judgment and rejected the applicant ’ s claim against the Administration, in particular on the grounds of the amendments to land legislation enacted on 19 December 2006.

On 9 September 2009 the Supreme Court rejected a request by the applicant for leave to appeal on points of law.

Application Aliarova v. Ukraine (34681/11)

In December 2003 the applicant acquired an unfinished building and a share in a plot of land in Simferopol from one of the land ’ s co-owners, Mr K. Another co-owner was Ms G.

On 17 September and 5 November 2004 the Simferopol Tsentralny District Court granted a claim by the applicant against K., with G. participating in the proceedings as a third party, and recognised the applicant ’ s title to the land and the building (“the 2004 judgments”).

In 2008 Ms G. asked the prosecutor ’ s office to institute criminal proceedings against the District Court judge who had decided the case in 2004. No such proceedings were instituted.

In August 2009 Ms G. applied to the District Court to set aside the 2004 judgments in the light of newly established circumstances.

On 27 August 2009 the District Court dismissed the application. On 14 December 2009 the Court of Appeal upheld that ruling.

In early 2010 G. lodged an appeal against the judgments of 17 September and 5 November 2004 and sought an extension of the time-limit for an appeal.

On 10 March 2010 the Court of Appeal rejected the request for an extension and dismissed the appeal as out of time on the grounds that G. had been present at the trial in 2004 and had not objected at the time to the applicant ’ s claim.

On 6 September 2010 the Crimea prosecutor ’ s office lodged an appeal against the 2004 judgments, seeking an extension of the time-limit for an appeal on the grounds that it had only learned about the judgment when in August 2010, on the instructions of the Prosecutor General, it had conducted what it called “a systematic audit of the legality of court decisions”.

On an unspecified date the Court of Appeal extended the appeal time ‑ limit and on 1 December 2010 quashed the 2004 judgments and rejected the applicant ’ s claim against K.

On 18 February 2011 the Higher Specialised Civil and Criminal Court refused a request from the applicant for leave to appeal.

B. Relevant domestic law

The relevant provisions of Ukrainian law concerning restrictions on the transfer of agricultural land can be found in the Statement of Facts in the case of Svintsitska and four other applications v. Ukraine , nos. 71082/12 et al. , c ommunicated on 4 May 2016.

COMPLAINTS

The applicants complain under Article 6 § 1 that they did not have a fair hearing before an impartial tribunal in the determination of their civil rights and obligations. In particular:

- in cases nos. 52410/09, 3746/10 and 34681/11 the applicants complain that the extension of the time-limits for the prosecutors ’ appeals in their cases and the quashing of final judgments in their favour breached the principle of legal certainty;

- in cases nos. 61822/09 and 34681/11 the applicants complain that the prosecutor ’ s intervention in their cases undermined the appearance of a fair trial and the principle of equality of arms;

- in case no. 52410/09 the applicant complains that the Court of Appeal was not impartial on account of the fact that the prosecutor ’ s appeal was lodged at the initiative of Judge L., a deputy president of the Court of Appeal.

The applicants also complain that the decisions of the domestic courts in their cases were in breach of Article 1 of Protocol No. 1. In addition, in cases no. 52410/09, 61822/09 and 3746/10 the applicants complain that the legislative restrictions on certain operations with agricultural land on which the decisions in their cases were in part based were in breach of Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing before an impartial tribunal in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:

1.1. In cases nos. 52410/09, 3746/10 and 34681/11, was the principle of legal certainty breached by the decisions to renew the time-limits for lodging the prosecutor s ’ appeals and to quash final and binding judgments in the applicants ’ favour (see Ponomaryov v. Ukraine , no. 3236/03, 3 April 2008 )?

1.2 . In cases nos. 61822/09 and 34681/11, d id the prosecutors ’ intervention in the applicants ’ cases undermine the appearance of a fair trial and the principle of equality of arms (see Menchinskaya v. Russia , no. 42454/02, § 39, 15 January 2009)?

1.3. In case no. 52410/09 , was the Court of Appeal impartial in view of the applicant ’ s allegation that the prosecutor ’ s involvement in his case was initiated by Judge L., a deputy president of the Court of Appeal (see, mutatis mutandis , Agrokompleks v. Ukraine , no. 23465/03 , §§ 137-41, 6 October 2011 )?

2. Was there an interference with the applicants ’ peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference in compliance with the requirements of Article 1 of Protocol No. 1? In particular:

2.1. In all the cases, were the decisions of the domestic courts, including those quashing final judgments in the applicants ’ favour , in compliance with the above provision?

2.2. In addition, in cases nos. 52410/09, 61822/09 and 3746/10, were the legislative restrictions on certain operations with agricultural land, which were applied by the domestic courts in the applicants ’ cases, contrary to the above provision? In relation to the latter question, the parties ’ attention is drawn to the circumstances set out in the Statement of Facts in the case of Svintsitska and four other applications v. Ukraine, nos. 71082/12 et al., communicated to the Government on 4 May 2016.

Appendix

File no.

Case name

Date of lodging

52410/09

YEREMENKO v. Ukraine

15/09/2009

61822/09

TIMCHENKO v. Ukraine

09/11/2009

3746/10

YEREMENKO v. Ukraine

18/12/2009

34681/11

ALIAROVA v. Ukraine

20/05/2011